Pradnya Neelkanth Samant And Anr vs Suneel Madukar Ghatpande And Anr
2022 Latest Caselaw 10492 Bom

                                                       1/7                        12-APPLN-551-18.odt

                                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CRIMINAL APPELLATE JURISDICTION

                                          CRIMINAL APPLICATION NO.551 OF 2018

                           Pradnya Neelkanth Samant & Anr.                    .... Applicants

                                          versus

                           Suneel M. Ghatpande & Anr.                         .... Respondents
                                                              .......

                           •       Mr. Bharat Ghadavi a/w Krupanshu Nandu i/b. Tejesh Dande &
                                   Associates, Advocate for Applicant.
                           •       Mr. Chandansingh Shekhawat a/w Yashovardhan Deshmukh i/
                                   b. Parinam Law Associates, Advocate for Respondent No.1.
                           •       Mr. S. R. Agarkar, APP for the State/Respondent No.2.

                                                      CORAM       : SARANG V. KOTWAL, J.

                                                      DATE        : 11th OCTOBER, 2022

                           P.C. :

1. This is an application for cancellation of bail granted to

Respondent No.1 vide order dated 27/07/2018 passed by the

learned Special Judge, Pune, under the Maharashtra Protection

of Interest of Depositors (In Financial Establishment) Act, in

Criminal Appeal No.2460 of 2018.

Digitally

2. Heard Mr. Bharat Ghadavi, learned counsel for the signed by MANUSHREE MANUSHREE V V NESARIKAR NESARIKAR Date:

2022.10.15 11:22:26 +0530

Applicant, Mr. Chandansingh Shekhawat, learned counsel for

Nesarikar 2/7 12-APPLN-551-18.odt

Respondent No.1 and Mr. S. R. Agarkar, learned APP for the

State/Respondent No.2.

3. The Applicants herein are the investors who had

invested their hard earned money in a scheme introduced by

one Deepak Sakharam Kulkarni. Learned counsel for the

Applicants submitted that the charge-sheet shows that about

45000 depositors have invested around Rs.1083 Crores believing

that the company was in profit and the partnership firms started

by Deepak Kulkarni, were part and parcel of DSK Company. The

Respondent No.1 was the external auditor and he had painted

very positive picture of these entities causing the investors to

invest in these entities. Ultimately the company did not return

the depositors the amounts as promised. The company was

always in a bad financial position. The Respondent No.1 was

responsible for presenting this positive picture of these entities

and hence was a conspirator.

4. Learned counsel for the Applicant submitted that the

learned Judge while granting bail to the Respondent No.1 did 3/7 12-APPLN-551-18.odt

not consider these issues in proper perspective. He submitted

that there are allegations that the Respondent No.1 had entered

into conspiracy to with the accused. His role is clearly

established through documentary evidence in the form of

auditor's report. All these factors were not properly considered

by the learned Judge.

5. Learned APP submitted that though he has supported

the learned counsel for the Applicant, the State of Maharashtra

itself has not preferred any application for cancellation of bail.

6. Learned counsel for Respondent No.2 on the other

hand submitted that it was only with the efforts of the

Respondent No.1 the correct financial position was uploaded on

the official website of the stock exchange which ultimately led to

registration of the FIR. He submitted that the Applicant was not

a beneficiary of the fraud. He relied on the order passed by the

Hon'ble Supreme Court in Special Leave to Appeal (Cri)

No.10065 of 2021 in B.A. No.3471 of 2019 dated 26/07/2022 4/7 12-APPLN-551-18.odt

whereby the Hon'ble Supreme Court granted bail to the main

accused Deepak Sakharam Kulkarni in respect of the same

subject matter. He submitted that since the main accused is

granted bail, there was no propriety in cancellation of bail of the

Respondent No.1.

7. I have considered these submissions. The Respondent

No.1 was granted bail by learned Judge in connection with

C.R.No.347/2017 registered at Shivaji Nagar police station u/s

406, 409, 420, 411, 465, 467, 468, 471, 120(b) r/w 34 of the

Indian Penal Code and u/s 3 and 4 of the Maharashtra

Protection of Interest of Depositors (In Financial Establishment)

(for short 'MPID Act'). Subsequently the investigation was taken

over by the EOW. The allegations in the charge-sheet are that the

main accused Deepak Kulkarni misappropriated huge amounts

by misleading several investors and siphoned off crores of

rupees from the money that was invested by consumers for

purchasing flats, several amounts were received by way of fixed

deposits by assuring that the depositors would get handsome 5/7 12-APPLN-551-18.odt

returns. A public limited company 'DSKDL' was formed. Besides

that, many other entities were floated. They were controlled by

DSKDL and his family members. They were used for siphoning

off the funds of the depositors without giving them returns.

Thus, the main allegations are directed against Deepak Kulkarni

and his family members. The allegation against the Respondent

No.1 was that he was an external auditor and he did not point

out all the liabilities of the company. The allegations were that

he had not shown the correct financial position when the loans

were obtained from the bank.

8. Learned counsel for the Applicant submitted that the

Respondent No.1 had falsely shown the interest on the loan as

capital of the company. He wrongly showed that the company

was in profit. He did not present the correct picture to the bank

when loans were sanctioned in favour of DSKDL. He was and

external auditor between 2006 to 2017 and he has signed

auditor reports upto 2017. During that period amounts were

received as deposits and they were used by DSKDL.

6/7 12-APPLN-551-18.odt

9. Learned counsel for Respondent No.1 on the other

hand relied on the uploaded status as mentioned earlier which

was dated 30/05/2017. In that communication, the Respondent

No.1 had specifically mentioned his opinion that there was

significant doubt on the company's ability to continue as a going

concern. He had opined that the company would be able to

continue as a going concern only if it was able to raise working

capital for its business and if it meets its obligations relating to

payment of statutory liabilities and servicing of its debts and if it

was able to comply with the provisions of the Real Estate

Regulation Act, 2016.

10. Thus, even before registration of FIR on 28/10/2017,

the Respondent No.1 had pointed out the weak financial

position of the company. Learned trial Judge in paragraph No.12

of his impugned judgment has observed that the Respondent

No.1 had no concern with the transactions between the

depositors and the prime accused DSKDL company. The 7/7 12-APPLN-551-18.odt

Respondent No.1 had not received any amount from the

depositors. No amount was entrusted by the depositors with the

Respondent No.1. He had not cheated the depositors. The

Respondent No.1 had co-operated with the investigating agency

and his further custody was not necessary. I do not find that

these observations are perverse. It is a possible view that is

taken by the learned Judge. This has to be looked at from the

angle of grant of bail to the main accused Deepak Kulkarni by

the Hon'ble Supreme Court. Thus, as of today, the alleged

beneficiary is on bail. There are no allegations that the

Respondent No.1 had got any benefit out of any of these

transactions. In view of this, I do not see any reason to interfere

with the impugned order granting bail to the Respondent No.1.

With these observation, the application is rejected.

(SARANG V. KOTWAL, J.)